Youngstown Daily Legal News

5th District panel affirms conviction for trafficking drugs in presence of children

JESSICA SHAMBAUGH
Special to the Legal News
Published: January 10, 2013

In a recent opinion, the 5th District Court of Appeals ruled that testimony from officers and an informant, as well as a written confession, provided enough evidence to support a Licking County man’s drug conviction.

Samuel Lomack argued that his conviction for selling Vicodin pills in bulk quantities in the vicinity of his children was against the manifest weight of the evidence. The three-judge appellate panel disagreed, and ruled that evidence supported the jury’s decision.

“We believe that the state presented sufficient evidence from which a jury could conclude, beyond a reasonable doubt, that Lomack committed the offense of selling, or offering to sell, Hydrocodone, a Schedule III Controlled Substance, in an amount equal to or exceeding the bulk amount but less than five times the bulk amount of Hydrocodone, said offense having occurred within the vicinity of a juvenile,” 5th District Judge Scott Gwin wrote for the court.

Case summary states that Jeremy Fister was a confidential informant for the Central Ohio Drug Enforcement Task Force in April 2011.

Fister contacted Lomack and arranged to purchase 100 Vicodin pills for $400 at a Flying J gas station in Kirkersville. Both Fister and his car were searched prior to the meetings and he was wired and given “buy” money.

At the gas station, Fister approached Lomack’s van — which contained Lomack’s wife and children — and testified that he purchased 100 pills for $400. Lomack then entered the gas station where an officer approached him and invited him to step outside.

After waiving his Miranda rights, Lomack admitted selling the pills and submitted a written statement, according to officer testimony. He was indicted for trafficking a Schedule III Controlled Substance in bulk amount within the vicinity of a juvenile.

Lomack filed a motion to suppress and argued that he was not read his Miranda rights. He further contested that he signed the written statement only after the officer threatened his wife and children.

The officer admitted that he did not record his conversation with Lomack or have Lomack sign a Miranda waiver. The Licking County Court of Common Pleas overruled the motion to suppress and found Lomack guilty of the charges. It sentenced him to 30 months in prison and he appealed to the 5th District.

Lomack contended the trial court erred in denying his motion to suppress and that his conviction was against the manifest weight of the evidence.

The appellate panel maintained that to succeed on his claim, Lomack had to prove that coercive police activity motivated his confession. It further held that the trial court was in the best position to determine credibility as it was able to view the parties demeanor, which did not translate to the written documents the appellate court was able to review.

Because the trial court’s conclusion was not unreasonable, the panel found it must stand and rejected Lomack’s assignment of error.

“Our review of the entire record convinces us that the evidence was substantial enough for the trier of fact to have reasonably concluded that the state had proved that Lomack was advised of his Miranda rights and knowingly, intelligently and voluntarily waived those rights prior to speaking with the police,” Gwin wrote.

The judges further found that the state presented evidence including Lomack’s written confession and testimony from Fister and the officers present that Lomack conducted the alleged sale in the same van in which his children were present. They determined that, if believed, this evidence would be enough to support Lomack’s conviction.

“The jury neither lost its way nor created a miscarriage of justice in convicting Lomack of selling, or offering to sell, Hydrocodone, a Schedule III Controlled Substance, in an amount equal to or exceeding the bulk amount but less than five times the bulk amount of Hydrocodone, said offense having occurred within the vicinity of a juvenile,” Gwin stated.

Fellow 5th District Judge William Hoffman and Presiding Judge Patricia Delaney joined Gwin to form the majority.

The case is cited State v. Lomack, 2013-Ohio-5.

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